Constitutional Law Group May 23, 2013 Comparative law, Human rights

Richard Ekins: Defying the law: a reply to Daly

I’m grateful to Paul Daly for bringing to my attention the Irish High Court’s Fleming decision and the Ménard Report. However, I think he is wrong to censure the former (at least, as harshly as he does) and to laud the latter.

Should the High Court have granted the application to order the Director of Public Prosecutions (DPP) to promulgate an offence-specific policy, with a view to providing ‘foreseeability and accessibility’? That is, should the High Court have followed Purdy, in which the House of Lords made just such an order (in relation to a different DPP of course)? Daly implies as much, saying that the High Court had to ‘twist away from Purdy’ and saying elsewhere that ‘the High Court wriggled out of Purdy in unconvincing fashion’. But the decisions of the House of Lords do not bind the Irish High Court and Purdy is not at all persuasive. No need then to wriggle out, for the decision should instead just be flatly rejected.

The House of Lords ordered the DPP to promulgate an offence-specific policy in order to guide Ms Purdy in determining whether her husband would be likely to face prosecution if he were to assist her in committing suicide, the relevant act of assistance being the act of helping her to travel to Switzerland in order to there be assisted in committing suicide. The rationale for the Lords’ decision was that the ban on assisted suicide constituted an interference with Ms Purdy’s private life, per Art 8(1), which interference had to be in accordance with law if it was to satisfy the demands of Art 8(2). Their Lordships held that the DPP’s code, which framed the exercise of the discretion to prosecute, formed part of the law in question. As law-abiding persons need guidance as to the legal consequences of their actions, so Art 8(2) required the DPP issue an offence-specific policy.

However, there was never any lack of clarity in the law governing assisted suicide. Section 2(1) of the Suicide Act 1961 unequivocally proscribed the acts in question (assisting a person to travel to a jurisdiction to commit suicide). Contra Jeremy Waldron the proviso in s 2(4) that no prosecution was to be brought without the DPP’s consent did not entail that the ban on assisting suicide was unclear or in need of specification. Rather, this provision, like the 130 or so other equivalent provisions found elsewhere in the law, authorised the DPP to exercise a supervisory control over which prosecutions were to be brought. The House of Lords ordered the DPP to promulgate an offence-specific policy to help a would-be law breaker in calculating the risk of prosecution. Thus, Purdy privileges a very odd conception of the law-abiding person. In truth, a law-abiding person is one who does his or her duty and does not commit offences; the odds of detection and prosecution are irrelevant to him or her. That is, citizens should do what the law says they should, rather than estimate their chances.

The legal duty was always entirely clear: do not assist suicide. In granting the application, the court sought to help people decide whether to flout their legal duty, which aims are contrary to the rule of law. John Finnis makes out this critique of the Purdy decision with illuminating care, first in his ‘The Lords’ Eerie Swansong: A Note on R (Purdy) v Director of Public Prosecutions’, and then in more detail (replying in part to Waldron and considering the DPP’s interim and final policy promulgated in the wake of the Purdy decision) in a paper entitled, ‘Invoking the Principle of Legality against the Rule of Law’, published in my edited collection Modern Challenges to the Rule of Law (LexisNexis, 2011) and, more accessibly, in [2010] New Zealand Law Review 601.

Prosecutorial guidelines are not a specification of the criminal law, providing that, whatever the substantive criminal law may say, some acts are not truly criminal at all. They are guidelines for prosecutors, not for law-abiding citizens, for whom the criminal law itself is the relevant guide. It would be unsound to move to stop a prosecution on the grounds that the prosecutor had not followed the guidelines in question; the guidelines are not a de facto defence on which to block a criminal charge. The DPP does not flout the rule of law if he or she changes the guidelines with immediate effect, such that they apply to cases where the alleged offending predates the guidelines. Indeed, that a person relies on guidelines to flout the criminal law is itself a reason to prosecute, for the act would involve brazen defiance of – by virtue of calculating disdain for – the criminal law. And for this reason, if ordered to promulgate offence-specific guidelines the DPP should aim to reserve the option to prosecute any offence, such that the guidelines do not encourage law-breaking.

What of the Ménard Report? As Daly outlines it, the report’s recommendation seems to me to defy federal criminal law and to flout the constitutionally mandated separation of powers. I make no prediction as to whether the stratagem would succeed, but take Daly’s own scepticism about its prospects to be telling. The stratagem should fail because it is flatly unconstitutional and contrary to the rule of law. It remains somewhat unclear then why Daly lauds the report’s approach, in contrast to the Irish High Court’s approach (refusing to order the DPP to undermine the criminal law). The reason seems to be that it is ‘the only means to give effect to the desire of the population to permit assisted suicide.’ However, the people of Quebec are not entitled to permit assisted suicide. The constitution makes the Parliament of the people of Canada as a whole responsible for decision on point.

The merits of assisting suicide aside, which I think irrelevant to the present discussion, there seems much to commend the Irish High Court’s refusal to be party to an effort to undermine the rule of law, and little to be said for the Ménard Report’s apparent attempt to flout the constitution of Canada and federal criminal law.

Richard Ekins is a Fellow of St John’s College, Oxford.

Suggested citation: R. Ekins ‘Defying the law: a reply to Daly’ UK Const. L. Blog (23rd May 2013) (available at http://ukconstitutionallaw.org)

4Comments

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1

Nick Barber on May 23, 2013 at 10:17 am
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Whilst I agree with the substance of Richard’s points in this post, I’m not so sure that the merits of assisted suicide are entirely irrelevant to the issue. Assisted suicide is an example of a topic over which the legislature – certainly in the United Kingdom – has singularly failed to respond to the views of the electorate. There is a balanced and thoughtful look at opinion polling on this issue on the Law and Religion UK blog (http://www.lawandreligionuk.com/2012/12/05/opinion-polls-on-assisted-dying/), and a more recent poll reported in The Guardian (http://www.guardian.co.uk/society/2013/apr/30/assisted-suicide-poll-religious) shows that even a majority of members of most religious groups now support change. Reading opinion polls is a tricky business, but it is pretty clear that there is little support for an outright ban on assisted suicide. A large majority want the law to permit euthanasia, at least in some cases.

It might be argued that examination of the details of law reform would alter public opinion. Perhaps when people have looked at the problems raised by assisted suicide they would change their minds: the practice is just too risky to defend. But this sort of examination is what we have Parliament for. If Parliament were to debate the issue it could be that the popular view would shift: the debate would force people to confront the realities of assisted suicide. And even if public opinion did not change, we could still comfort ourselves with the thought that the issue had been thoroughly considered. Parliament should not be a slave to public opinion. On a topic like this, we hope that our representatives – with their special powers and duties – will examine the issues with even greater care than the voters, and will reach the decision we would have reached if we had their time and information. But none of this has happened. Parliament has avoided the issue, perhaps because MPs fear that, like gay marriage, it is the type of question that can cost them votes from those they disappoint, but will not win them fresh support from those they please.

Richard is right that the decision in Purdy goes against the rule of law. The Suicide Act was perfectly clear, and the House of Lords’ decision amounts to concealed law reform rather than a clarification of an ambiguous statute. But it may yet be defensible. The House of Lords was responding to a failure of the democratic process: the legislature had not done its job. The legislation regulating assisted suicide was fifty years old, and clearly no longer reflected the will of the electorate. By insisting that the DPP give some, limited, protection to those assisting in the death of another, the court helped bring the law a little closer to the wishes of the majority of the people. The decision could be seen as a form of updating interpretation: the courts struggling, as they have in other areas, to keep elderly statutes relevant to modern conditions. This is far from ideal, but the answer is clear: Parliament should debate and being willing to reform the law on this issue. Then the courts would be given a clear message from the legislature about what the law should be, and the electorate would be given a chance to encourage their representatives to change an out-dated law.

Nick Barber
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Aileen McHarg on May 23, 2013 at 10:45 am
Reply

I think that there is something to be said on both sides here. On the one hand, requiring a prosecutor to issue guidelines which may have the effect of diluting the strict letter of the law is hard to reconcile with the separation of powers. This is not the same situation as, for example, the legislative conferral of a discretionary power, which the executive then concretises through the publication of policies or guidance. In that case, executive ‘rule-making’ supplements, rather than modifies the law.
On the other hand, the classic reasons why we might want executive actors to confine their discretion through the adoption of rules or guidelines – i.e., to prevent arbitrary or oppressive decision-making – clearly do apply in this situation. There is clearly a risk that a prosecutorial decision might be based not on legitimate considerations, such as the likelihood of securing a conviction, but on illegitimate considerations, such as the identity of the accused. If prosecutorial discretion is exercised arbitrarily or on illegitimate grounds, then it is not the person who is prosecuted who has grounds for complaint. I agree with Richard that there is no breach of individual rights involved. Rather, it is the public as whole which is harmed because our interests in maintaining the rule of law are undermined. Promulgating prosecutorial guidelines may therefore promote the rule of law, as Paul says, by increasing the transparency of prosecutorial decisions, and by enabling us to test the content of the guidelines for relevant or irrelevant considerations.
There is clearly a fine line to be negotiated between promoting the rule of law and breaching the separation of powers, and much will depend, I would have thought, on the precise content of the guidelines that are adopted.
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Richard Ekins on May 23, 2013 at 11:19 am
Reply

Thanks Nick for the thoughtful reply.

You’ll be unsurprised to hear that I’m no fan of judicial updating (as an earlier post of mine on this blog, as well as some published work, makes clear). If one thinks unsound some (clear) statutory provision, then the answer is to persuade Parliament to amend it. True, Parliament sometimes fails to do its duty and even to consider changing the law. But that’s not so in this case. Lord Falconer moved an amendment to the Coroners and Justice Bill 2008-09 (UK) to remove from the scope of s 2 of the Suicide Act 1961 the kind of assisting travel for purposes of suicide that was in view in Purdy. The motion was the subject of vigorous debate and was rejected.

As you say, the task of deciding whether to amend the law in question is one for Parliament, after careful consideration of the relevant reasons. It would be an abdication of duty for Parliament to take opinion polls (even if accurately representing a settled popular sentiment) to require legal change. Those polls (and that sentiment) might well require Parliament to consider change, but whether the law should change is up to Parliament. This is all consistent, I think, with there sometimes being good reason for Parliament to put a question directly to the people to be decided, although you would need a narrow (and salient) question/proposal for this to be reasonable.
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Paul Daly on May 23, 2013 at 9:48 pm
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Thank you for the thoughtful response, Richard.

I perhaps did not identify my central point with sufficient precision. My goal was to highlight the democratic potential of administrative guidelines, in terms of facilitating public debate inside and outside of Parliament, opening up the possibility of interaction between Parliament, the Director of Public Prosecutions and the public, and giving effect to popular opinion. Democracy does not (and ought not) begin and end at the edges of legislative chambers, a point underscored by the Menard Report. As is clear from my post, I agree with you that the Report’s proposals are ultimately unconstitutional, though because they breach the division of powers in the Canadian constitution, not the separation of powers. What is interesting is the Report’s emphasis on administrative guidelines as the means of giving effect to the popular will. More generally, administrative guidelines can be useful in responding to a lack of clarity in primary legislation. As Justice Scalia noted this week, albeit in a different context, about the need to engage in line-drawing when primary legislation is not clear: “These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges”. It is not obvious that only judges do and ought to have a say in situations where primary legislation is not clear.

Are the Irish and English prohibitions on assisted suicide clear? This is not a point I addressed at all in my post, but I can venture some observations here. Doubtless, section 2(1) is clear, but the presence of 2(4) complicates matters.Once one accepts (as I think one must, at least as a matter of law), that 2(1) engages Article 8(1) of the Convention, 2(4) takes on a character very different from the “130 or so” equivalent provisions (or, at least, those of them that do not violate Convention rights). It loses the character of a general supervisory power and adopts that of a discretion that must be exercised in accordance with individuals’ Convention rights. On this reading, 2(1) and 2(4) cannot be read in isolation but form part of a complete scheme the legitimacy of which must be assessed in the round. One could question whether administrative guidelines can ever be “law” for the purposes of this analysis. For my part, I think refusing to so recognize them is to privilege a formal conception of “law”. Guidelines are not simply internal tools but have an effect on the exercise of administrative powers and, in turn, on the legal rights of individuals. Given this effect, the foreseeability and predictability requirements of Article 8(2) kick in, and, more generally, disclosure of the guidelines becomes important.

As to the more general point about discretion and guidelines, I agree with Aileen. If enforcement discretion is being exercised, it is preferable that the relevant considerations be made publicly available. That is not to say that guidelines should always be required, just that administrative guidelines do no less violence to the rule of law than case-by-case decision-making behind closed doors.